16:0198(31)CA - Customs Service and NTEU -- 1984 FLRAdec CA

[ v16 p198 ] 16:0198(31)CA
The decision of the Authority follows:

16 FLRA No. 31
U.S. CUSTOMS SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-439
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Exceptions to the
Judge's Decision were filed by the General Counsel and the Charging
Party. /1/ The Respondent filed an opposition to the exceptions of the
General Counsel and the Charging Party, and filed cross-exceptions to
the Judge's Decision. /2/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendation that the complaint be
dismissed, for the reasons set forth below.
The complaint alleges that the Respondent's issuance of a Manual
Supplement concerning procedures for the management of overtime
assignments performed by Customs Inspectors violated section 7116(a)(1),
(5) and (6) of the Statute. /3/ The record shows that the parties
reached impasse on June 7, 1979, during impact and implementation
negotiations concerning the Manual Supplement. The Respondent notified
the Union that it would implement its last proposal as soon as possible,
subject only to whatever delay might be caused by certain ministerial
actions, such as having the Manual Supplement retyped in final form.
The Union announced that it intended to invoke the services of the
Federal Service Impasses Panel (the Panel) concerning the impasse in
negotiations, but gave no specific date as to when it would file such
request. A letter dated June 11 was sent to the Respondent advising
that the Union intended to file with the Panel for assistance as soon as
possible. The Respondent, however, did not receive that letter until
sometime after June 12. On the morning of June 12, the Respondent gave
the Union notice over the telephone that the Commissioner was expected
to sign the Manual Supplement by noon and that the Manual Supplement
would be issued that day. The Authority notes particularly that, during
this conversation, the Union's representative neither made any reference
to the Union's letter dated June 11 indicating an intent to promptly
file with the Panel, nor otherwise stated that the Union's submission to
the Panel was nearing completion and that filing was imminent. Rather,
the Union's representative merely stated that, "I think it's improper,
if not illegal for you to implement it while we are going to the Panel."
The Respondent in fact issued the Manual Supplement on June 12. The
Union delivered its request for assistance to the Panel in the afternoon
of the following day.
The Authority finds that the Union had a reasonable opportunity to
invoke the services of the Panel after the parties reached impasse in
their negotiations on June 7, and after receiving the Respondent's
notice of its intent to implement its last proposal as soon as possible,
and that, while the Respondent made clear to the Union on June 12 that
the Manual Supplement would be issued that day, and did so issue it, the
Union failed to advise the Respondent that its filing with the Panel was
imminent. Moreover, while it could have done so immediately, the Union
nevertheless delayed filing its request with the Panel until the
afternoon of the following day. The Authority thus finds that the
Respondent in these circumstances did not act unlawfully in implementing
the Manual Supplement six days after the parties had reached impasse.
Accordingly, we shall dismiss the section 7116(a)(1) and (5) allegations
of the complaint. /4/ Further, as the Panel declined to exercise
jurisdiction over the matter in question, the Authority finds that the
allegations in the complaint do not form the basis for finding a
violation of section 7116(a)(6) of the Statute, and we shall therefore
also dismiss the allegations of the complaint in this regard.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-439 be, and it
hereby is, dismissed.
Issued, Washington, D.C., October 3, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
U.S. CUSTOMS SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No.: 3-CA-439
Gary B. Landsman, Esquire
Judith A. Newton, Esquire
For the Respondent
Sharyn Danch, Esquire
For the Charging Party
Susan Shinkman, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. Sec.
7101, et seq., /5/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Sec. 2423.1, et. Seq., was initiated by a charge
filed on August 23, 1979 (G.C. Exh. 1(a)), which alleged violation of
Sections 16(a)(1), (5), (6) and (8) of the Statute; the Complaint,
issued August 27, 1980, alleged violations of Section 16(a)(1), (5) and
(6) of the Statute. Pursuant to the Notice of Hearing, a hearing was
duly held before the undersigned on November 5, 1980, in Washington,
D.C.
All parties were represented by counsel, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and were afforded the
opportunity to present oral argument, which right each party waived. At
the close of the hearing, December 5, 1980, was fixed as the date for
mailing post-hearing briefs, which time was subsequently extended, upon
timely motion of Respondent joined in by the other party, for good cause
shown to January 9, 1981. Each party timely mailed an excellent brief,
received on or before January 13, 1981, which have been carefully
considered. On May 21, 1981, Counsel for Charging Party filed a
document entitled "Memorandum of Law" to which Counsel for General
Counsel filed a Response, dated May 29, 1981, and received by this
office on June 1, 1981. As no provision was made for the submission of
any further post-hearing memoranda, Charging Party's "Memorandum of Law"
of May 21, 1981, has not been considered. Upon the basis of the entire
record, including my observation of the witnesses and their demeanor, I
make the following findings and conclusions.
Findings
1. The National Treasury Employees Union (hereinafter "NTEU") since
1978 has been the recognized exclusive representative of two units of
Customs employees, one consisting of all professional employees assigned
to the Office of Regulations and Rulings, the Headquarters Office, and
to Region II and IX of the Customs Service; and the other consisting,
inter alia, of all nonprofessional employees assigned to the
Headquarters Office and to Regions I through IX of the Customs Service.
Included are some 4,500 Customs Inspectors.
2. This case concerns overtime of the Customs Inspectors. There are
five basic types of Customs overtime, "generally referred to as
'inspectional overtime', because their major purpose is to provide
overtime compensation for Customs inspectors" (Res. Exh. 10) as follows:
1911 Act (19 U.S.C. Sec. 267); 1944 Act (19 U.S.C. Sec. 1451);
Airport and Airway Development Act Amendments of 1976 (P.L. 94-353);
F.E.P.A. Overtime (5 U.S.C. Sections 5542, 5546); and Administrative
Uncontrollable Overtime (5 U.S.C. Sec. 5545(c)(2)). However, the 1911
Act, under which the Customs Service is reimbursed by the parties in
interest for overtime inspectional services performed on Sundays and
holidays as well as night duty between 5 p.m. and 8 a.m. if not part of
regular duty hours, is the principal concern herein.
3. On February 12, 1979, Respondent delivered to Mr. John Bufe,
Associate General Counsel, NTEU, its proposed Manual Supplement entitled
"Management of Inspectional Overtime", which it stated would be
implemented March 13, 1979 (Res. Exh. 1).
4. The proposed Manual Supplement was not, of course, the first
document to address the subject of inspectional overtime. The first
such document, referred to by Respondent as "INS-2", was issued in the
1950's and was the basic procedural policy guidance for management of
inspectional overtime, although entitled "Assignment of Personnel to
Inspectional Activities", which as amended, most recently in 1978, was
the policy and procedural guide regarding the assignment of personnel to
inspectional activities. (Res. Exh. 1; Tr. 129-130).
5. The proposed Manual Supplement provided, inter alia, for the
establishment of tours of duty, not on overtime, at seaports and at
airports (Res. Exh. 2, Par. 5, 6 and 7). Although substantially more
overtime accrues under the 1911 Act, and, accordingly, there was
substantially greater impact on 1911 overtime, the proposals also,
specifically, were directed at recurring assigned FEPA overtime. While
the proposed Manual Supplement provided for tours of duty, not on
overtime, it did not establish any such tours of duty or shifts.
6. Mr. Bufe recognized the far-reaching effect of the proposed
changes on overtime of Inspectors, which under optimum circumstances
Respondent had estimated might involve as much as $10,000,000.00 per
year (Res. Exh. 10, p. 9) and promptly met with NTEU National President,
Mr. Vincent L. Connery, and with NTEU General Counsel, Mr. Robert M.
Tobias, to discuss the proposal.
7. During February and March, 1979, Messrs. Connery and Bufe met
with Mr. Robert E. Chasen, Commissioner of Customs, and exchanged
correspondence concerning Respondent's proposal. Mr. Chasen agreed to
defer the date of implementation (March 13, 1979) pending receipt of
NTEU's comments which were to be submitted by March 13, and Mr. Connery
did respond by letter dated March 13, 1979 (Res. Exh. 9).
8. On February 21, 1979, Mr. Bufe delivered to Mr. Geoffrey Spinks,
Respondent's Director of Labor Relations, a written request to bargain
over the proposed Manual Supplement (Res. Exh. 4). /6/
9. On April 16, 1979, NTEU's proposals were submitted (Res. Exh.
15); additional proposals were submitted on May 16, 1979 (Res. Exhs. 16
and 17); Respondent submitted counter-proposals on May 25, 1979 (Res.
Exh. 18) which, in party, adopted NTEU proposals; and on May 29,
Respondent adopted, as modified, NTEU's proposal to establish an
overtime abuse reporting system (Res. Exh. 19).
10. Negotiations began on May 16 and continued on seven subsequent
dates, concluding on June 7, 1979. At the request of NTEU, mediators
from the Federal Mediation and Conciliation Service assisted the parties
during the final three negotiating sessions held on May 30, June 6 and
June 7, 1979. On June 7, the mediators informed the parties that they
believed that further bargaining would be fruitless and that the dispute
would be certified to the Federal Service Impasses Panel (FSIP) as
having reached impasse if the parties so desired (Tr. 167). The
Complaint alleged that "On June 7, 1979, the Union and Respondent
reached impasse in negotiations over the proposed manual supplement"
(G.C. Exh. 1(c)), the Answer admitted that impasse had been reached
(G.C. Exh. 1(d)) and, at the hearing, General Counsel and NTEU conceded
that impasse had been reached on June 7, 1979. /7/
11. There is no question whatever that NTEU had stated its intention
to take the matter to the FSIP. Mr. Bufe testified, in part, that,
" . . . I had been telling him (Mr. Spinks) all along, that I
was going to invoke their (FSIP) services." (Tr. 108).
Mr. Spinks fully agreed, stating, in part, as follows:
"Q. Mr. Spinks, do you recall any Union representative telling
you at that meeting on June 7 that the Union would be going to the
Federal Services Impasse Panel?
"A. I don't recall it specifically at that meeting, but almost
every meeting we had Mr. Bufe mentioned at one time or another
that the dispute would have to go to the Panel, that they would go
to the FLRA, that they would go to the Panel, that they would go
to the FLRA, that they would go to the courts, that they would go
to the UN, they would go any place they could to see that the
supplement was not issued." (Tr. 168). /8/
12. It is equally clear that Respondent informed NTEU at the close
of the June 7 meeting that it would take steps to issue the Manual
Supplement as soon as it was redrafted to incorporate Respondent's last
offer. Thus, Mr. Spinks testified, in part, as follows:
"A. When we were drawing to a close and we knew we were not
going to meet, I informed Mr. Bufe that we would take steps to
issue the manual supplement as expeditiously as we could.
"Q. What did you say to him about what was going to be in
order to issue the manual supplement?
"A. I told him I couldn't give him a date or time because we
had to go back, redraft the issuance itself to incorporate into
the issuance our offers that were made, your last offers that were
made in the bargaining session, and that would involve a complete
retyping, redrafting. Once we got it through the bureaucratic
approval mill, that Commissioner would sign it and issue it.
"Q. Did Mr. Bufe respond to your saying that the manual
supplement would be implemented?
"A. Well, his remark that stands out the most was he told me,
Well you do what you have to do and we will do what we have to
do." (Tr. 167-168).
Mr. Bufe fully agreed, stating, in part, as follows:
"Q. How did that meeting on June 7, 1979 end?
"A. It ended with the parties, when I say the parties I mean
myself on behalf of the Union, Mr. Spinks on behalf of Customs,
and also the mediators, finally coming to the recognition in the
afternoon that these were negotiations that were not going to
result in agreement, at least at the mediation stage; that the
differences were deep-rooted, and that as they understood it there
was very little likelihood, no likelihood in mediation that
agreement would be reached. Face to face Mr. Spinks said to me he
was going to do what he had to do and that was, as far as he was
concerned he had negotiated with us and he was going to implement
his issuance. My response to him was well, that is what he has to
do and there are some things I have to do. I was speaking from
these notes and I said number one, we are definitely going to be
taking certain proposals to the Impasses Panel; number 2, the
proposals he had declared non-negotiable we were going to appeal
on a negotiability appeal; number 3, we intended to file unfair
labor practices where appropriate; and number 4, should he make
good on his promise to implement while we were going to the
Impasses Panel, I was going to regard that as illegal and that an
unfair labor practice would be filed to contest that action as
well." (Tr. 77-78).
13. Mr. Bufe testified that he completed his draft of the appeal to
the FSIP on Sunday, June 10, 1979, and had it typed. (Tr. 107).
14. On the morning of June 12, 1979, Mr. Spinks telephoned Mr. Bufe
and informed him as follows:
"On the morning of the 12th, I called Mr. Bufe and told him
that the revisions had been completed and that the proper people
had given their approval, and that we had placed it before the
Commissioner to sign it and that I expected him to sign it by
noon." (Tr. 170).
"JUDGE DEVANEY: Mr. Spinks, let me ask you this: you were
asked, and you told us you called Mr. Bufe on the 12th of June,
and you told us what you said to him. Tell me what he said to
you.
"THE WITNESS: He said, I think words to the effect, well, this
means we are really going to go at it over this one.
"JUDGE DEVANEY: Is that all he said?
"THE WITNESS: I believe so. We had pretty well exhausted our
comments with each other on this matter over a period of time. He
may have used the words, 'This means war.' He uses that
occasionally." (Tr. 172).
Mr. Bufe confirmed the fact that he had a conversation with Mr. Spinks
on the morning of June 12, 1979, and testified, in part, as follows:
"A. Mr. Spinks and I had a conversation that I can recall, a
telephone conversation on, I believe it was the 12th, the day that
bears the date of the issuance. I don't recall whether I called
him or he called me. I recall a conversation. I recall him
saying to me 'Well, we are implementing this thing today.' I
recall me saying in response 'I am not surprised but as you know I
am in disagreement with it and we are going to the Panel and I
think it's improper, if not illegal for you to implement it while
we are going to the Panel'." (Tr. 81).
15. Mr. Bufe further testified that on May 8, 1979, Chapter
Presidents had been informed, in part, as follows:
"A. The five to seven days was simply our estimate. We had
never been told by management when it would be implemented. You
must realize that these meetings occurred before bargaining even
began. We had just received the advance notice. Our proposals
had been submitted as I remember at the time of the meeting, but
we had not began bargaining. So there was no way for us to know
when the manual supplement would be implemented. Bargaining might
take a month, it might take three months, and it would also depend
on, we knew we were going to the Panel if things weren't resolved.
Then it would depend on whether management was going to defer
implementation until we got to the Panel.
"The five to seven days' advance notice included in the memo, I
would only say I was never told by management at any time to
expect five to seven days' notice. That is a figure that we used
for general memo purposes and for planning purposes, and for no
other reason. In effect, we were saying to people we did not know
when the manual supplement would be implemented; that we could
predict to the best of our knowledge, not based on anything
management told us but rather based on experience as labor
relations professionals, that we would hope and expect to get
approximately a week's notice, but no more than that . . . ." (Tr.
214-215).
16. Respondent issued the Manual Supplement on June 12, 1979. (Res.
Exh. 23; Tr. 169).
17. On June 12, 1979, Mr. Bufe transmitted "an additional copy of
the material I submitted to FMCS last week" to Commissioner John F.
McDermott, Federal Mediation and Conciliation Service (G.C. Exh. 4) and
stated that "NTEU expects to file its appeal with the Panel by June 15,
1979" (G.C. Exh. 4).
18. At 3:15 p.m. on June 13, 1979, Mr. Bufe delivered to FSIP its
request for assistance (G.C. Exh. 5). Mr. Spinks testified that he was
informed on June 14 or 15, that NTEU had contacted the FSIP (Tr. 169).
19. As noted above, while the Manual Supplement directed that
"Commensurate with current levels of staffing and distribution of work
load, tours of duty, not on overtime, will be established" (Res. Exh.
23, Par. 3(b)(6), (7) and (8), the Manual Supplement neither established
nor created any such tours of duty, or shifts; but, to the contrary,
the actual shift changes were negotiated locally (Tr. 177). Indeed,
Paragraph 4(d) of the Manual Supplement provided, for example, that:
"(d) Where the implementation of this Manual Supplement results
in the establishment of new shifts or other changes in matters
affecting conditions of employment, NTEU shall be afforded the
opportunity to negotiate over the implementation and/or impact of
such changes. Such negotiations will be conducted at the Regional
level, or, upon mutual agreement, at the District or local level
as appropriate." (Res. Exh. 23, Par. 4(d)).
Mr. Fowler testified that where shifts were established NTEU was given
the opportunity to bargain (Tr. 191-194).
20. It is conceded by all parties that Respondent's Manual
Supplement as issued on June 12, 1979, did not exceed the scope of the
proposals advanced by Respondent during negotiations and that it did
faithfully reflect all matter agreed upon by the parties in
negotiations.
Conclusions
The sole issue in this case is whether NTEU had a reasonable
opportunity, after impasse in impact and implementation negotiations and
Respondent's notice of intent to implement, to invoke the processes of
FSIP prior to Respondent's issuance (implementation) of its Manual
Supplement. NTEU did not invoke the processes of FSIP prior to
Respondent's implementation of the Manual Supplement. Impasse was
reached on June 7, 1979, at which time Respondent informed NTEU that it
would implement (issue) the Manual Supplement, and Respondent
implemented (issued) the Manual Supplement on June 12, 1979. If, under
the particular circumstances of this case, NTEU had a reasonable
opportunity to invoke the processes of FSIP prior to Respondent's
implementation and failed or refused to do so, then, clearly,
Respondent's implementation of its Manual Supplement on June 12, 1979,
was lawful and proper and there would be no basis whatever for finding
an unfair labor practice. U.S. Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 5 FLRA No. 39 (1980). On the
other hand, if NTEU did not have a reasonable opportunity to invoke the
processes of FSIP prior to Respondent's implementation of the Manual
Supplement, then, equally clearly, Respondent's implementation of its
Manual Supplement on June 12, 1979, was unlawful and improper. U.S.
Army Corps of Engineers, Philadelphia District, A/SLMR No. 673, 6 A/SLMR
339 (1976).
The concept of "impasse" presupposes: a) that the parties have
bargained in good faith; and b) that after good faith negotiations the
parties have exhausted the prospects of concluding an agreement. Here,
it is conceded that impasse was reached in negotiations on impact and
implementation of Respondent's proposed Manual Supplement on June 7,
1979. Sec. 19 of the Statute, entitled "Negotiation impasses; Federal
Service Impasses Panel", provides, in relevant part, as follows: /9/
"b) If voluntary arrangements, including the services of the
Federal Mediation and Conciliation Service, . . . fail to resolve
a negotiation impasse--
(1) either party may request the Federal Service Impasses Panel
to consider the matter . . . ." (5 U.S.C. Sec. 7119(b)).
As NTEU very correctly states in its Brief,
"Neither the statute nor the FSIP regulations, 5 C.F.R. Part
2471, provide a limitation for invoking the Panel's services. The
statutory language requires only that a party file a request if
the Panel's assistance is desired.
"The FSIP has not exercised its authority to establish a
limitation period . . . The Panel's regulations address only the
means of filing a request, 5 C.F.R. 2471.1. . . . " (NTEU Brief,
pp. 8-9).
The decisions, under both the Executive Order and the Statute, have
consistently held that, after impasse, changes of personnel policies and
practices and matters affecting working conditions may unilaterally be
implemented only if the agency "provides the other party with sufficient
notice of its intent to implement the changes (which cannot exceed the
scope of the proposals advanced by that party during prior negotiations)
so that the other party is afforded a reasonable opportunity under the
circumstances to invoke the processes of the Federal Service Impasses
Panel." Internal Revenue Service, Ogden Service Center and Department of
the Treasury, Internal Revenue Service,, Brookhaven Service Center, FLRC
Nos. 77A-40 and 77A-92, 6 FLRC 310, 320 (1978); U.S. Army Corps of
Engineers, Philadelphia, District, supra; United States Department of
the Treasury, Internal Revenue Service, Cleveland, Ohio, A/SLMR No. 972,
8 A/SLMR 98 (1978); U.S. Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, supra. Nor can there be any
doubt, however it may be stated, that notice of intent to implement must
be given after impasse to permit lawful unilateral implementation, i.e.,
whether, as NTEU states, "The Union's opportunity to file its request
with the Panel does not begin to run until the agency has given 'notice
of its intent to implement' unilateral changes" (NTEU Brief, p. 10), or
whether, as the Assistant Secretary stated, "Respondent violated Section
19(a)(1) and (6) of the Order by unilaterally instituting the change . .
. without providing the Complainant with reasonable notice of its
intended action", U.S. Army Corps of Engineers, Philadelphia District,
supra, 6 A/SLMR at 341. In the U.S. Army Corps of Engineers case,
supra, impasse had been reached on March 4, 1974, and neither party
requested the services of the Panel. The Assistant Secretary stated, in
part, as follows:
" . . . In the instant case, the evidence established that
neither party had invoked the Panel's procedures at the time the
Respondent implemented the changes in the working conditions . . .
in May 1974. Consequently, the Respondent's conduct herein would
be considered privileged if the evidence established that the
Complaint was afforded appropriate notice of when the intended
change was to be put into effect so as to provide the latter with
an opportunity to invoke the services of the Panel. In the
instant case, however, it is undisputed that the Complainant was
not notified prior to the institution of the change . . . and was
not given the opportunity to invoke the procedures of its Panel
prior to the Respondent's instituting a change in existing terms
or conditions of employment . . . " (6 A/SLMR at 341).
Obviously, neither the fact that an impasse in negotiations has been
reached nor the passage of time after impasse permits a lawful
unilateral implementation of the change, on which impasse has been
reached, in the absence of notice "of when the intended change was to be
put into effect" in order to provide the Union, after notice of intended
implementation of the change, "an opportunity to invoke the services of
the Panel."
In the instant case, there is no dispute whatever that on June 7,
1979, after impasse, Respondent gave NTEU notice that it intended to
implement its proposed Manual Supplement. Thus, for example, Mr. Spinks
stated that he informed Mr. Bufe, " . . . that we would take steps to
issue the manual supplement as expeditiously as we could" and Mr. Bufe
stated that Mr. Spinks, face to face, " . . . said to me he was going to
do what he had to do and that was, as far as he was concerned he had
negotiated with us and he was going to implement his issuance." It is
true, that Mr. Spinks did not give Mr. Bufe a date or time certain for
implementation for the reason that, " . . . we had to go back, redraft
the issuance itself to incorporate into the issuance our offers that
were made, your last offers that were made in the bargaining session,
and that would involve a complete retyping, redrafting." Nevertheless,
as Mr. Spinks made it clear that Respondent " . . . would take steps to
issue the manual supplement as expeditiously as we could" and that " . .
. Once we got it through the bureaucratic approval mill, that (sic)
Commissioner would sign it and issue it", I conclude that Respondent's
notice of June 7, 1979, did advise NTEU "of when the intended change was
to be put into effect", i.e., as soon as we get it redrafted and signed
by the Commissioner, to set in motion "The Union's opportunity to file
its request with the Panel". Not only do I find that Mr. Spinks' notice
"of when the intended change was to be put into effect" was sufficiently
definite, but Mr. Bufe made it clear that he fully understood the
implications of Mr. Spinks' notice. Thus, by way of example, after Mr.
Spinks told him, " . . . he was going to implement his issuance", Mr.
Bufe stated, "my response to him was well, that is what he had to do and
there are some things I have to do . . . I said . . . we are definitely
going to be taking certain proposals to the Impasses Panel. . . . "
The ultimate question is whether NTEU had a reasonable opportunity,
after Respondent's notice of June 7, 1979, to request the FSIP to
consider the matter prior to Respondent's implementation (issuance) of
the Manual Supplement on June 12, 1979. For reasons set forth
hereinafter, in view of the particular facts and circumstances of this
case, I conclude that NTEU had a reasonable opportunity to invoke the
services of the FSIP prior to Respondent's issuance (implementation) of
its Manual Supplement and with full knowledge of Respondent's intent to
issue (implement) the Manual Supplement on June 12, 1979, NTEU failed
and refused to invoke the services of the FSIP prior to its issuance
(implementation). Accordingly, Respondent was privileged to implement
(issue) its Manual Supplement, as it did, on June 12, 1979, and
Respondent did not thereby violate Secs. 16(a)(1), (5) or (6) of the
Statute.
In the absence of a limitation fixed by Regulation between the time
of notice of intent to implement and the time when a change lawfully may
be implemented if the services or the FSIP are not requested, what
constitutes a reasonable opportunity to invoke the services of the FSIP
must be determined on a case by case basis in light of the circumstances
of each case. What is eminently reasonable in one case may be wholly
unreasonable in another. In U.S. Air Force, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, supra, eight days was
held to be a reasonable opportunity. Under other circumstances, five
days, which I find to have been a reasonable opportunity in this case,
might very well be unreasonable. Indeed, in all candor, I would not
have found five days to have given NTEU a reasonable opportunity to
invoke the services of the FSIP if there had been any evidence whatever
that indicated that NTEU, readily, could not have requested the services
of the FSIP prior to Respondent's issuance (implementation) of its
Manual Supplement. I have taken into consideration NTEU's prior
experience in taking matters to the FSIP; the fact that NTEU is located
in the same building as the FSIP; the fact that the same person, Mr.
Bufe, was chief spokesman for NTEU in the negotiations and the person
who handled the matter before the FSIP; the fact that Mr. Bufe stated
that he completed his draft of the appeal to the FSIP on June 10, 1979,
and had it typed; and that on the morning of June 12, 1979, Mr. Spinks
called Mr. Bufe and told him that the revisions had been completed and
that he expected the Commissioner to sign it by noon.
The record shows, inter alia, that:
a) Even before negotiations began, NTEU had advised its Chapter
Presidents, on May 8, 1979, that it anticipated no more than " . .
. five to seven days' advance notice" in order to request the
services of the FSIP.
b) On June 7, 1979, after the conceded impasse had been
reached, Respondent gave NTEU notice that it intended to issue
(implement) its proposed Manual Supplement "expeditiously"; that
as quickly as it could be redrafted to reflect "our offers that
were made" and "we got it through the bureaucratic approval mill"
the Commissioner "would sign it and issue it."
c) Mr. Bufe fully agreed that on June 7, 1979, Mr. Spinks, face
to face, told him that "he was going to implement his issuance".
There is no possible doubt that Mr. Bufe understood fully the
implications of Mr. Spinks' statement as he responded, "that is
what he had to do and these are some things I have to do" which
included "taking certain proposals to the Impasses Panel". I find
nothing in the record that indicates that on June 7, 1979, Mr.
Bufe asked Mr. Spinks to "defer implementation until we got to the
Panel", a consideration Mr. Bufe had noted in the May 8, 1979,
communication to Chapter Presidents; but, even it if were implied
from his statement of things he, Bufe, had to do, obviously, Mr.
Spinks did not agree to do so and Mr. Bufe well understood that
Mr. Spinks did not agree to defer implementation.
d) With full awareness that Respondent intended to implement
the Manual Supplement "expeditiously", Mr. Bufe "wrote the brief
on the weekend and had it typed . . . I came in on Sunday and
wrote the brief and had it typed." (Tr. 107).
e) Although Mr. Bufe had written his brief (appeal) "on Sunday"
and "had it typed", NTEU did not file its request for assistance
with FSIP either on June 11 or 12, 1979.
f) On the morning of June 12, 1979, Mr. Spinks called Mr. Bufe
and told him that the revisions had been completed and that he
expected the Commissioner to sign it by noon. Mr. Bufe stated
that Mr. Spinks told him, "Well, we are implementing this thing
today" and that he had responded, "I am not surprised but as you
know I am in disagreement with it and we are going to the Panel
and I think it's improper, if not illegal for you to implement it
while we are going to the Panel." Again, although Mr. Bufe
repeated his prior intent to go to the Panel, Mr. Spinks,
obviously, did not agree to defer implementation and Mr. Bufe
fully understood that Respondent would not agree to defer
implementation "while we are going to the Panel".
g) Notwithstanding the further notice on the morning of June 12
that Respondent expected to issue (implement) the Manual
Supplement by noon, NTEU did not file its request for assistance
with the FSIP.
h) Respondent issued (implemented) its Manual Supplement on
June 12, 1979, and, of course, no request for the assistance of
the FSIP had been filed.
i) At 3:15 p.m. on June 13, 1979, Mr. Bufe delivered NTEU's
request for assistance to the FSIP.
j) I have found that Mr. Bufe's letter, dated June 11, 1979
(G.C. Exh. 3), addressed to Mr. Spinks, was not received by
Respondent until June 13, 1979; nevertheless, it is clear that
both on June 7, 1979, and on June 12, 1979, as noted above, Mr.
Bufe had told Mr. Spinks that NTEU was "taking certain proposals
to the Impasses Panel" and/or "we are going to the Panel".
Following impasse in negotiations on June 7, 1979, Respondent was
privileged to implement its proposed Manual Supplement if NTEU did not
invoke the services of the FSIP within a reasonable period of time after
notice of its intent to implement. Respondent gave NTEU notice of
intent to implement its proposed Manual Supplement on June 7, 1979. On
June 12, 1979, Respondent, in the morning, advised NTEU that it expected
to issue its proposed Manual Supplement at noon (June 12). NTEU had
written its request for assistance on June 10 and "had it typed"; but
NTEU did not invoke the services of the FSIP prior to Respondent's
implementation of the Manual Supplement notwithstanding that it had a
reasonable opportunity to do so after Respondent's notice of intent to
implement given on June 7, 1979, nor did it do so on June 12, 1979,
after notification, in the morning, that Respondent intended to issue
the Manual Supplement that day, even though its request had been
prepared and NTEU was located in the same building as the FSIP.
The parties had correlative rights: Respondent had the right to
implement (issue) its proposed Manual Supplement if NTEU did not invoke
the services of the FSIP within a reasonable period after its notice of
June 7, 1979, of intent to implement; NTEU had the right to invoke the
services of the FSIP within a reasonable period after Respondent's
notice of June 7, 1979, of intent to implement. NTEU, with full
knowledge of Respondent's intent to implement; with reasonable
opportunity to invoke the services of the FSIP; and with its request
prepared, on June 10, 1979, chose not to invoke the services of the FSIP
prior to Respondent's issuance (implementation) of its Manual
Supplement, notwithstanding that Respondent on the morning of June 12
had informed NTEU that it intended to issue (implement) the Manual
Supplement by noon that day and NTEU could readily have filed its
request, which already had been prepared, with the FSIP, which was in
the same building, but, again, chose not to do so. As NTEU had a
reasonable opportunity to invoke the services of the FSIP after
Respondent's notice of intent to implement, given on June 7, 1979, and
failed or refused to do so, Respondent's implementation (issuance) of
its Manual Supplement on June 12, 1979, was the lawful exercise of a
privileged right and it did not violate Secs. 16(a)(1), (5) or (6) by
its implementation (issuance) of the Manual Supplement.
General Counsel would engraft a further limitation on the right to
implement following notice of intent to implement, namely, that NTEU's
statement of intent to invoke the services of the FSIP precluded
implementation pending NTEU's invocation of the services of the FSIP. I
reject this assertion. From the Statute and from the decisions
construing the provisions of Sec. 19 of the Statute, and the wholly like
provisions of Section 17 of the Executive Order, the only limitation on
any agency's right to implement a proposed change in conditions of
employment following impasse in negotiations and notice of intent to
implement is the right of the union to a reasonable opportunity to
invoke the services of the FSIP. NTEU was entitled to a reasonable
opportunity to invoke the services of the FSIP; it has a reasonable
opportunity to do so; however, it chose not to invoke the services of
the FSIP prior to Respondent's implementation. Certainly, NTEU had the
right not to invoke the services of the FSIP; but the conscious
exercise of this right did not, and does not, render unlawful
Respondent's exercise of its right to implement the Manual Supplement,
after notice of intent to implement, since NTEU had a reasonable
opportunity to invoke the services of the FSIP and chose not to do.
The importance NTEU attached to the Manual Supplement and the
dispatch with which Mr. Bufe prepared his brief to the FSIP merely
emphasize the deliberate and conscious election of NTEU not to invoke
the services of the FSIP prior to Respondent's implementation. I do not
question in the slightest NTEU's absolute right to "trade" the certainty
of the assistance of the FSIP, had it desired to invoke the processes of
the FSIP, for the vicissitudes of litigation. Whether NTEU hoped, or
believed, that Respondent would delay implementation if it asserted it
was going to the Panel; whether NTEU believed its stated intent to go
"to the Panel" would prevent implementation; whether NTEU believed it
could predetermine what it considered to be a reasonable opportunity
within which to invoke the processes of the FSIP from which it declined
to move; or whether it was motivated by other considerations need not
be determined since the record shows, and I have found, that: a) NTEU
had a reasonable opportunity to invoke the services of the FSIP prior to
Respondent's implementation; and b) that NTEU consciously elected not
to do so.
In view of my conclusions that Respondent lawfully implemented its
Manual Supplement on June 12, 1979, it not only is unnecessary but would
be inappropriate to comment on remedy since no unfair labor practice
occurred. I simply note that, as the record shows, the Manual
Supplement implemented on June 12, 1979, did not establish any shifts or
tours of duty; that Paragraph 4(d) of the Manual Supplement provided,
inter alia, that "the establishment of new shifts or other changes in
matters affecting conditions of employment" were subject to notice to
NTEU and "the opportunity to negotiate over the implementation and/or
impact of such changes"; and that such changes in shifts or tours of
duty were negotiated locally.
Accordingly, having found that Respondent did not violate Secs.
16(a)(1), (5) or (6) of the Statute, 5 U.S.C. 7116(a)(1), (5) or (6), by
its implementation of its proposed Manual Supplement on June 12, 1979, I
recommend that the Authority issue the following:
ORDER
The Complaint in Case No. 3-CA-439 be, and the same is hereby,
dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: October 16, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Among other matters, the Charging Party excepted to the Judge's
refusal to consider its "Memorandum of Law." The Judge's action in this
regard was correct, as the Memorandum was filed after the period set by
the Judge (in accordance with section 2423.25 of the Authority's Rules
and Regulations) for filing timely post-hearing briefs had passed.
/2/ The General Counsel filed a motion to strike the Respondent's
cross-exceptions. However, the Authority granted an extension of time
to the Respondent to file its opposition and cross-exceptions, and the
Respondent's cross-exceptions were filed within the time allotted by the
Authority. Accordingly, the General Counsel's motion to strike is
denied.
/3/ Section 7116(a)(1), (5) and (6) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
(6) to fail or refuse to cooperate in impasse procedures and
impasse decisions as required by this chapter(.)
/4/ See U.S. Air Force, Air Force Logistics Command, Wright-Patterson
Air Force Base, Ohio, 5 FLRA 288 (1981) and Department of Health and
Human Services, Social Security Administration, Baltimore, Maryland, 16
FLRA No. 32 (1984), also issued this date.
/5/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., 7116(a)(1) will be referred to, simply, as
"16(a)(1)".
/6/ I am well aware that NTEU's demand was to negotiate "substance,
impact and implementation" (Res. Exh. 4); that Respondent stated in its
letter of March 5, 1979, that "the proposed Supplement was provided to
you on February 12, in order to provide NTEU with an opportunity to seek
negotiations over such substantive aspects . . . as may be negotiable
and over the implementation and impact of those aspects which constitute
reserved management rights." (Res. Exh. 7).
Nevertheless, General Counsel made it very clear that the bargaining
was solely impact and implementation bargaining (Tr. 19) as asserted by
Respondent (Tr. 13). In view of General Counsel's position and theory
of the case, I shall assume, although I do not decide, that the
bargaining was solely bargaining on impact and implementation and,
conversely that the proposed Manual Supplement constituted a reserved
management right pursuant to Sec. 6(a) of the Statute.
/7/ Respondent, at the hearing, initially contended that because, it
asserted, NTEU had not bargained in good faith, no impasse had been
reached (Tr. 17). In view of the allegations of the Complaint (Par.
10), the Answer (Par. 10), and the agreement of all parties that impasse
had been reached on June 7, 1979, the issue of good faith vis-a-vis the
negotiations was not, and is not, before me and will not be decided.
/8/ Mr. Bufe wrote a letter, dated June 11, 1979, addressed to Mr.
Spinks, in which he stated, in part,
"Please be advised that NTEU will be promptly filing its appeal
of this impasse to the Federal Service Impasses Panel as soon as
possible. Be further advised that any implementation of the
proposed manual supplement during the pendency of the Impasse
Panel proceeding will be regarded as unlawful by NTEU, and
appropriate action will be taken." (G.C. Exh. 3).
Mr. Bufe stated that he gave the letter to a law clerk to deliver. He
testified, " . . . I did not, for example, I did not talk to her
afterwards. She never said to me that I delivered it. I don't remember
that. It's possible that she didn't. I will have to say that." (Tr.
216).
Mr. Spinks testified that he had not received Mr. Bufe's letter as of
June 12, 1979 (Tr. 169); that he received it, he thought, on June 13;
that he believed it came in the mail and was postmarked June 12, 1979
(Tr. 169). Mr. Lawrence K. Fowler, a Labor Relations Specialist for
Respondent, also testified that Mr. Bufe's letter was received sometime
after June 12, probably June 13, perhaps the 14th (Tr. 194-196).
Under the circumstances, I conclude that G.C. Exh. 3 was not received
by Respondent until after June 12, 1979.
/9/ Section 17 of the Executive Order 11491, as amended, was
substantially the same and, in relevant part, provided:
"Sec. 17. Negotiation impasses. When voluntary arrangements,
including the services of the Federal Mediation and Conciliation
Service . . . fail to resolve a negotiation impasse, either party
may request the Federal Service Impasses Panel to consider the
matter . . . ."